Thursday, May 24, 2012
Deal Or No Deal?: 8th Circuit Prevents Defendant From Presenting Evidence That She Rejected A Plea Bargain
Pursuant to Federal Rule of Evidence 410(4),
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:...
a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
So, evidence of a statement made during plea discussions "is not admissible against the defendant who made the plea or participated in the plea discussions." But is evidence of such a statement admissible on behalf of the defendant who made the plea or participated in the plea discussions? According to most if not all courts, including the Eighth Circuit in its recent opinion in United States v. Alexander, 2012 WL 1660944 (8th Cir. 2012), I explain why opinions such as Alexander no longer make sense, assuming that they ever did.
In Alexander, Meggan Alexander was convicted of one count of knowingly making false statements in connection with a loan offered for insurance by the Department of Housing and Urban Development and three counts of knowingly making false statements for the purpose of influencing a financial institution insured by the Federal Deposit Insurance Corporation. After she was convicted, Alexander appealed, claiming, inter alia, that the district court abused its discretion in failing to admit evidence that she rejected a plea agreement.
The Eighth Circuit quickly dispensed with this argument, finding that in United States v. Verdoorn, 528 F.2d 103, 107 (8th Cir. 1976), "we concluded that “government proposals concerning pleas should be excludable” in order to encourage '[m]eaningful dialogue between the parties.'" Specifically, in Verdoorn, the Eighth Circuit held that "[m]eaningful dialogue between the parties would, as a practical matter, be impossible if either party had to assume the risk that plea offers would be admissible in evidence."
In 1976, this opinion might have made sense despite the plain lanuage of Federal Rule of Evidence 410(4) only preventing evidence of plea statements from being admitted against defendants. But this opinion makes no sense today. In United States v. Mezzanatto, 513 U.S. 196 (1995), the defendant brought a constitutional challenge to the prosecutor's use of an impeachment waiver. Basically, the prosecutor forced the defendant to sign a waiver indicating that should his case proceed to trial, the prosecutor could impeach his trial testimony with his contradictory statements during plea discussions. In other words, by signing the waiver, the defendant partially waived the protections of Federal Rule of Evidence 410(4).
In challenging the enforceability of the waiver, one of the defendant's arguments was the same as the Eighth Circuit's argument in Verdoorn: If such waivers could be enforced, it would have a chilling effect on plea bargaining. In other words, in effect, such waivers force the defendant to, in the words of the Eighth Circuit, "assume the risk" that his statements during plea discussions would be admissible in evidence.
In rejecting this and other arguments, the Supreme Court in Mezzanatto held, inter alia, that
The Rules provide that statements made in the course of plea discussions are inadmissible "against" the defendant, and thus leave open the possibility that a defendant may offer such statements into evidence for his own tactical advantage. Indeed, the Rules contemplate this result in permitting admission of statements made "in any proceeding wherein another statement made in the course of the same ... plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it."...Thus, the plea-statement Rules expressly contemplate a degree of party control that is consonant with the background presumption of waivability.
So, where is the party control? In 1995, we had the Supreme Court uphold impeachment waivers in large part because Federal Rule of Evidence 410 "leave open the possibility that a defendant may offer [plea discussion] statements into evidence for his own tactical advantage." And yet courts simply haven't looked at this language and reversed their prior precedent which had held that defendants can't present evidence of rejected plea bargains. This is the basic point of my article, Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains.
And Mezzanatto isn't even he end of the story. Since Mezzanatto, a number of circuits have approved of rebuttal waivers, under which a prosecutor can use a defendant's plea discussion statements to rebut any contradictory position asserted by the defendant at trial, whether that position takes the form of the defendant's testimony, the testimony of other witnesses, exhibits, or even defense counsel's opening statements. Moreover, a number of circuits have approved of case-in-chief waivers, under which a prosecutor can use a defendant's plea discussion statements as part of his case-in-chief, regardless of whether the defendant presents and evidence or testimony at trial.
These latter waivers are increasingly popular, meaning that defendants are increasingly being asked to assume the very risks that the Eighth Circuit found would be fatal to plea bargaining in Verdoorn. The argument from this is then two-fold. If, as statistics show, such waivers are not fatal to plea bargaining, why not adhere to the plain language of Federal Rule of Evidence 410(4) and allow defendants to present evidence of rejected plea bargains. If waivers haven't gummed up the works, why would such a procedure throw a monkey wrench in the plea bargaining system. And, if such waivers are in fact gumming up the works, maybe we should allow defendants to testify that they rejected plea bargains, but this would also mean that we should enforce waivers of Rule 410 rights.